Chandra v. Holder

The panel may hear a petitioner’s untimely motion to reopen even if the changed country conditions are made relevant solely by the petitioner’s personal circumstances.

Cipto Chandra (“Chandra”) filed a petition of review to the Board of Immigration Appeals (BIA) for the denial of his motion to reopen removal proceedings. Chandra is an Indonesian citizen of Chinese descent. After he entered the United States in 1998, the Department of Homeland Security initiated removal proceedings once he had overstayed his visa. Chandra conceded the removability and filed for an asylum application under the United Nations Convention Against Torture on the grounds that if he was forced to return to Indonesia, he would be persecuted because of his Chinese ethnicity. The Immigration judge denied the Chandra’s application for “withholding of removal and protection because he failed to carry his burden for either form of relief.” The application was also considered to be untimely. The BIA eventually dismissed his appeal, as did this panel. Chandra however, did not leave the country and eventually converted to Christianity. After his conversion, he filed an additional motion to reopen based on “changed circumstances in Indonesia.” He contended that many Christians in his home country were being persecuted by Islamic fundamentalists as well as by the Indonesian military. The BIA denied the Chandra’s motion citing that “[c]hanges in the respondent’s personal circumstances in the United States do not constitute sufficiently changed circumstances so as to allow for the untimely reopening of these proceedings.” On appeal, the panel reviewed the elements required under 8 C.F.R. § 1003.2(c)(iii)(2); the regulation requires: “(1) changed circumstances arising in the country; (2) evidence that is material; and (3) evidence that was not “available at the time of the previous hearing.” The treatment of Christians had worsened in the country since the initial proceeding; therefore the panel determined that Chandra did qualify for the exception, even though the conditions were made relevant solely by Chandra's actions. PETITION GRANTED and REMANDED